ASHWANI KUMAR Vs. VIDYA

JUDGEMENT

(1.) Heard Shri. Shiv Sagar Singh, the learned counsel for the applicant and Sri. N. C. Rajvanshi, the learned Senior Counsel for the respondents.

(2.) The suit was dismissed by the trial court. The plaintiff filed an appeal and during its pendency, the plaintiff died. The applicant filed an application to substitute himself as the legal heir of the deceased on the ground that he is the adopted son of the plaintiff by virtue of a registered adoption deed dated 31 -1 -1984. The defendants filed their objections. The lower Appellant Court, after considering the matter, rejected the application on the ground that the adoption deed had not been validly executed and simultaneously dismissed the appeal as abated. Aggrieved, the petitioner filed the present application under Article 227 of the Constitution of India.

(3.) The learned counsel for the respondents Sri. N. C. Rajvanshi raised preliminary objection that the application under Article 227 of the Constitution of India was not maintainable, inasmuch as the impugned order was a decree within the meaning of Section 2 (2) of the C. P. C., and therefore, only an appeal would lie against the said order under Section 100 of the C.P.C. The learned counsel for the respondents placed reliance upon the provision of Section 2 (2) of the C.P.C. and submitted that the lower Appellate Court had determined the rights of the applicant/petitioner while holding that the adoption deed had not been validly executed. The order of the lower Appellate Court was passed in consonance with the provision of Order 22, Rule 5 of the C.P.C. which finally determined the question of the legal representative of the deceased plaintiff/appellant. Consequently, such determination conclusively determined the rights of the party with regard to the matter in controversy in the suit.